8/29/2006

There are few absolutes in this world. That doesn’t invalidate general principles.

For example, I believe soldiers should follow orders.

But if a superior orders the soldier to murder a young child out of revenge for another soldier’s death, the soldier should disregard the order.

Am I a liar for having claimed that I believe soldiers should follow orders?

No. The fact that you can posit a very rare scenario to the contrary does not invalidate my basic principle: soldiers should follow orders. It simply means that there are few absolutes in this world.

Similarly, let’s assume you are against torturing people by poking out their eyes. If I could paint you a scenario where you could save millions only by torturing an evil man by poking out his eyes, you’d do it.

That doesn’t mean you’re for it. And it doesn’t render your statement of opposition meaningless.

I am against jury nullification. Some have advanced extreme examples that either would never occur in the real world, or where the moral choice is so clear that it would be obvious, except to those blinding themselves to their own humanity for the sake of consistency.

I would vote to acquit someone charged with the “crimes” of being Jewish, or saving slaves.

That doesn’t mean I support jury nullification.

The jury is an important bulwark against the state.

But if a drug dealer is the scourge of a Compton neighborhood, creating a heightened risk of drive-by shootings from rival drug dealers, as well as a generally lower quality of life, the people of that neighborhood should not be subjected to that drug dealer because some wine-sipping libertarian from the Westside decides that, in his opinion, drug dealing is a victimless crime and he won’t convict even if the evidence is overwhelming.

Let the wine-sipper lobby his Assemblyman, or start an initiative. The jury room is not the place to change the law. Juries are not freestanding Legislatures of 12, and to allow them to act as such is to undermine the Rule of Law.

I oppose jury nullification myself, US History has shown me lots of horror stories and even serious foreign crises stemming from it (the filibusteros in the 19th cent.). But reading through the comments it struck me that there is something very American about not wanting to give up that card. I had to read the Federal Privacy and Freedom of Information Acts for my job, I got the distinct impression Congress simply did not want anyone to be able to read it, probably they hadn’t read it themselves. That means we have to trust the Courts to tell us what the law actually is, most of us have no way of knowing. And that kind of trust has somewhat naturally dimmed, whatever your point of view most are getting leerier of a legal system that strikes them as often deliberately arcane. And it takes no conspiracy theorist to notice that the people prosecuting, defending, and judging us have a lot to gain by keeping it that way. And it seems to me that as with bias in the media or academia a conspiracy is not required where a consensus exists, everybody just quietly does there little bit to maintain the status quo they like.

The last time I looked, jury nullification didn’t change the law at all (whether that is a good thing or not might be a good question, but the direction the law should change is not really revealed by the jury.)

I’m not going to vote to acquit the neighborhood drug dealer, as a general proposition, BUT if the “dealer” happens to be an elderly cancer victim struggling with chemo, growing pot for themselves and three neighbors who also have cancer and chemotherapy, though, I might.

I for one, am know completely confused by what Patterico is holding by.
Is he saying:
If there was a law he thought immoral , he would acquit the accused no matter what, but since it is a morality based decision it is not nullification ?

Patterico, you say that under certain rare circumstances jury nullification might be appropriate. How about judicial nullification? Are the circumstances equally rare, more rare, or less rare when a judicial tribunal is justified in nullifying the plain meaning of a law that is otherwise constitutional?

[Society would have to be going to hell first. As a judge, I would not uphold a law mandating summary execution of all Jews. But if such a law passed, we’d have bigger issues at hand than abstract questions of judicial ethics. — P]

Pardon me if I’m asking something already answered, or not exactly in the discussion, but please instruct a non-lawyer what to do in the following situations:

1. An attorney, defense or prosecution, makes statements which are known by the juror to be untrue and the juror has reason to believe the attorney should know the truth also. For example, the defense attorney states that the Compton neighborhood is known for its active “Town Watch” program and no one has been known to sell drugs there for the last 3 years?

2. Upon starting deliberations, a juror says to his/her peers, “I don’t care what they said, I don’t trust the police?”

MD, in response to your question 1: jurors are not to consider anything said by an attorney on either side as evidence- not statements made in opening or closing statements, and not questions put to witnesses. The only evidence on which jurors are to base their decision comes in the form of answers given by witnesses on the stand, and exhibits.

Your question 2 is a little more difficult- jury selection questions are designed to screen out people with prejudice against the police, such as your hypothetical juror, so hopefully such a person would not make it onto the jury in the first place. I assume that if your hypothetical situation did occur, other jurors could send a note out to the judge, but I think that the remedy might vary by jurisdiction.

I’ve already mentioned that I completely agree with Patterico on this point.

The reason I write now though, is to I think note that I do understand why Patterico is rightly reluctant to say it. (After all, I myself do not normally comment anonymously on any topic, but I am on this one).

htom’s response is exactly what is scary about jury nullification. It is not the jury’s responsibility to feel sorry or think the law is unfair. It’s the juror’s duty to apply the law as written and not the emoting aspect of gosh that’s mean.

Unfortunately, recognition of jury nullification, can set off such people who do think that nullification is the way to change the application of the law when only 8% of the people agree with their nuttiness.

Adam Smith said that “mercy to the guilty is cruelty to the innocent.” The jury taking genuinely guilty people off the hook because is not right and it harms all of society.

I think you are missing what is most important about the right of jury nullification. It is the jury’s responsibility to think a law unfair, or a punishment too harsh. The jury is not an assembly of robotic tools of the judge, or the prosecutor. They are State; the jury is citizen.

I’m not going to vote to acquit the neighborhood drug dealer, as a general proposition, BUT if the “dealer” happens to be an elderly cancer victim struggling with chemo, growing pot for themselves and three neighbors who also have cancer and chemotherapy, though, I might.

No one ever said that doing the right thing was always easy.

That, of course, is the argument of the “medical marijuana” crowd, the ones that want to use a sympathy issue to simply legalize pot for recreastional use.

The trouble with that argument is there is already a legal, FDA approved alternative, Marinol. The cancer patients can get whatever relief is available from cannibis via Marinol prescription.

Re Dana:
Since no research on the subject is allowed, and anecdotal evidence suggests otherwise, what is the source for your statement that Marinol is as efficacious as cannabis for chemotherapy and glaucoma patients?
Surely you are not relying on the unsupported statements of the FDA, which is a politically-driven group. As evidence, consider the recent scandal regarding the banning, and then permitting, of over-the-counter sales of the morning after pill.

The cancer patients can get whatever relief is available from cannibis via Marinol prescription.

In theory, not in practice. My cancer patient father tried it recently in an attempt to stimulate his appetite. Instead, it wiped him out so he stopped taking it. If the active ingredient is in the medical arsenal, why shouldn’t the herb also be an option instead of just the chemical derivative? It’s illogical.

There’s an argumentation fallacy in the claim that since some of those who are in favor of recreational marijuana make an argument, that argument when raised by others is invalid. Sorry, I’ve forgotten it’s name.

From watching elderly folk cope with chemo, with and without marijuana and/or Marinol, I am inclined to think that the identification of THC as the “buzz” component of marijuana smoke is correct — and it is not the component that’s useful in coping with chemo. For those of you who are sure that Marinol is the correct drug fro coping with chemo, I wish you well with it and think that that’s all the relief you’ll get.

The law frequently has little exceptions that are part of the text that don’t make the newspapers — in Minnesota, there’s an exception in the extortion and coercion statutes for prosecutors in the making of plea bargins, for example — and I think of jury nullification as an unwritten exemption that applies in the particular case.

To imagine that the text of the law is perfect is at best folly, and at worst, legal tyranny.

Here’s another crazy jury question, which to my knowledge hasn’t happened yet, though it certainly could. Assume you’re on a Federal Jury and they’re prosecuting someone in Oregon who is growing their own pot for medicinal use.

uh-oh, there’s a tiny speck of moral relativism on patterico’s lapel, just to the left of his tie.
“i would vote to acquit someone charged with the ‘crimes’ of being jewish or saving slaves.
that doesn’t mean i support jury nullification.”
lol@”wine-sipping libertarian”. as a wine-drinking libertarian, all i can tell you is to broaden your horizon; the best wine doesn’t come from a cardboard box. i particularly like the italian reds. i recommend a brunello di montalcino from the great year of 1995 to go with your libertarianism. can you attack beer-drinking liberals from reseda next?
you tell us to lobby our assemblyman or start an initiative. hey, we did that with medical marijuana, guess what happened? the supreme court said it was still “interstate commerce”, even if it’s grown at the same location where it’s consumed. maybe i’m too stupid to comprehend this, but it sure looks like the supreme court lied to save marijuana prohibition. if some single malt whisky-swilling neocons can lie to preserve an unjust law, why should a wine-drinking libertarian disobey his conscience on this matter?
@violent drug dealers:
this grace does not extend to you.
@dana:
cannabis is not equivalent to marinol, and anybody who says so is a liar.

That is a regular conflict of laws issue, not a juror issue. Listen to the judge’s instructions, which will tell you what elements must be proven to secure conviction. There is an entire body of law that governs such potential conflicts.

How has your hypthetical “drug dealer” been a “scourge?” Has he killed someone? Beaten them? Stolen something? If so, I’ll be more than happy to to lock him up and throw away the key. I’ll even vote to give him the death penalty for murder, and do it with a smile. What this “wine-sipping libertarian” will NEVER, EVER do is send a person to jail for engaging in a voluntary economic transaction. Or is it OK to imprision an American simply because, in your estimation, they create a “heightened risk” that some OTHER violent mutant might commit a real crime against THEM. I find that attitude frightening and bizarre in a prosecutor. I wonder what activities I engage in that might create a “risk” that some criminal would do me violence. Wearing the wrong clothes in the wrong neighborhood? Being the wrong race? How long should my prison sentence be?

Lest there be confusion, if it was Joey Dopehead growing bud for his (and his friends) recreational use, I’d vote to convict him.

Those In Charge, who can’t seem to write a medical exception, should expect to see an occasional nullification, and I hope that they get more and more of them. In my opinion, the ordeal of having to go through the trial process, along with the financial costs and the death of the family dog, is itself excessive punishment. “Piling on” is the old phrase.

Thanks for pointing it out once again Pat.
Jurors are not elected officials. Congress critters, at all levels, are. They make laws and pass them on to the executive to either sign or veto.

The wisdom, consitutionality, effectiveness or even fairness of a particular law is not appropriate for discussion by jurors. That is for the legislature(s), the executive or, in some cases, an appellate court that has agreed to consider a challenge on some of all of the grounds stated above.

And please do not lose sight of another important fact that has not been much discussed. No matter what the actions of a single jury or single juror in a particular case, THE LAW IS STILL ON THE BOOKS! Nothing changes. The next guy, or the next 100 guys for that matter, being charged with a violation of it is no better off. The beat goes on.

The only way to make a difference is to take advantage of what the system has to offer in the way of redress (Hmmmm, wonder where that word came from?). Bring the problem to the attention of the electeds and hope they see it the same way as you. If not, vote for someone else in the next election.

P.S. The medical marijuana law was the result of an initiative, not legislative enactment. Proposition 36 you will remember. Won’t you? Also, in any discussion of this topic, we must not lose sight of the fact that controlled substances, O.K.’ed for use as medical palliatives and made available by prescription only, have been previously approved by the Federal Drug Administration. Marijuana has not yet achieved FDA approval. Therein lies the real basis of the conflict between states like California and the feds.

The Feds argue they have pre-empted the field and thus are not bound by conflicting state enactments regardless of their provenance. It ain’t just the Bushies protecting federal turf. Any A.G. would or should. The FDA will never concede either.

That the law remains on the books is to me probably a feature of jury nullification, not a flaw.

Jurors are officers of the court, elected by the lawyers from the pool provided by the court. That the election is not a secret ballot and is more of an exclusionary process than an inclusionary one is one of those details that doesn’t make much of a difference.

@ms. judged:
so you’re willing to wait for the fda (political appointees) to approve marijuana, meanwhile locking up poor old granny cancer patient, so she might die in prison?
many jurors feel competent to determine for themselves what constitutes an appropriate subject for discussion. your scolding will fall on deaf ears.
we don’t get to vote for supreme court justices, so what redress is available to us for blatantly dishonest opinions such as the one that held that growing it on your own property is interstate commerce?

The problem with the whole, Balko and libertarian position generally on jury nullification is that it is so, anti-social.

We, as a whole have determined what drugs, what rules to govern ourselves by. If three strikes is unfair, then try to change the law. Oh yeah you did, and thanks, in part, to good work by Patterico, the asinine Prop. 66 went down in flames.

The jury doesn’t get to decide fair or unfair the 50%+1 of society does. The anti-social tendancies to be like, “I don’t give a “rat’s rear end” what the majority thinks” comes to undermine civil society generally. It wouldn’t surprise me though if some jury nullifiers see this as a feature, not a bug.

So what you’re really saying is that Nullification should be rare. I agree with that.
Seems reasonable. Of course, it seems reasonable to me to nullify when the alternative is life in prison for a bag of weed due to a third strike law.

Oh, and you don’t like libertarians.

That makes sense also. Many of them are annoying. (Mona) Personally i like Balko. But that’s just a mater of taste.

1) The law does not adequately consider the actual circumstances of the case.

2) The law is grossly evil.

The first almost never comes up because police and prosecutors have some discretion, and aren’t interested in nailing good people on technical violations.

The second, in my opinion, doesn’t justify nullification of drug laws generally (to take an example).

It’s kind of like the fact that the Second Amendment is a check on the government’s monopoly of power. That fact doesn’t justify shooting bad politicians.

On nullification, note that I consider drug laws both morally wrong and counter-productive — most of the “evils” of drug use are due to the law creating an extra-legal culture engaged in a profitable trade. But it isn’t a grossly evil law, just stupid and wrong.

I was in a jury pool for a drug possession charge, and I told the Judge that I didn’t believe that drug possession laws are just or fair. He asked if I could put that opinion aside and judge on the facts and I said no. He gave me a pretty rough five minutes, probably to make sure I wasn’t just trying to get off the jury. Then I left.

I would consider that to be the appropriate action, rather than staying on the jury to nullify the unjust law.

On the other hand, it may be appropriate for the stereotypical old lady growing her own medical weed.

I do think the overapplication of the Commerce Clause has undermined one of America’s strengths — you could go set up a community and live the way you consider right. Now, the Feds impose a “global” morality, and local dissent can only occur through jury nullification of inappropriate federal laws. If States could decide about medical marijuana for themselves, we wouldn’t have these debates about jury nullification — we’d have a few decades where different States had different laws, and a national consensus would settle out.

Federal Dog, in response to your comment #24- I’ve not taken conflict of laws (I’m just a 2L) but isn’t the response to Pablo’s hypo in comment #22 even simpler? To wit, in a federal prosecution, it’s federal law that’s being applied, not state law, so state law is irrelevant, and the defendant should be found guilty.

Pablo, to take it one step further however, it would seem that SCOTUS’s decision in Gonzales v. Raich pretty definitively settled that when it comes to conflicts between federal and state law with regard to legality of medical marijuana, federal law is supreme. This would no doubt be reflected in the judge’s instructions to the jury.

A.. ” ‘feature’ of jury nullification, not a flaw.” What does that mean? That one poor schlub gets a pass because a few jurors decide to ignore the oath while hundreds if not thousands of others get convicted. You don’t think that’s a flaw? Sheesh!

Jurors are not officers of the court. They are not “elected” by the attorneys or anybody else. I suppose I should not be surprised that the balance of your comment is undecipherable. Your misunderstanding of the law and the system is almost total.

Look, it should be apparent that I beleive that snark has its place. But you should at least have some working knowledge of the topic before you engage in it. May I suggest another forum where lawyers, judges and elected officials are not at play. Your lack of bona fides will be less apparent there.

Pablo, to take it one step further however, it would seem that SCOTUS’s decision in Gonzales v. Raich pretty definitively settled that when it comes to conflicts between federal and state law with regard to legality of medical marijuana, federal law is supreme. This would no doubt be reflected in the judge’s instructions to the jury.

Now you will note from a careful reading of my most recent post, that I said nothing about my preferences. How you deduced from it that I would prefer to see poor old granny cancer patient locked up in prison for life while waiting for FDA approval, is a mystery. I merely pointed out the reasons the FEDS don’t feel constrained by state laws such as these.

But just to set the record straight, I would not care to see granny, or any other cancer patient locked up for the rest of their lives unless they violated a criminal statute and deserved it.

However, if you have an example of that happening anywhere in the United States, I’d be more than happy to discuss it with you. Happy research.

Don’t get me started on the Supreme’s extending the reach of federal law through the Commerce Clause. For the most part it has been an abomination. But I bet if the result was to your liking, you’b be willing to give it a wink and a nod. Hmmmmm? Take a look at the Oly’s Bar-B-Q case and their use of the Commerce Clause to get their nose into lunch counter regulation and get back to me.

Oh! Hey! How about the relatively recent case where they struck down a federal law having to do with possession of prohibited material within certain distances from shcools. That was the Mr. Justice Rehnquist and his hated minions. But they were on your side there. Oh the irony.

Now riddle me this? The congress of the United States felt that quality drugs; safe, reliable. effective drugs; were something the American public should have a right to expect from the health care industry. Snake oil salesmen and home remedies were maiming and croaking too large a segment of the population. What’s worse, the aggrieved individuals or their survivors had little or no recourse. What’s a government to do? Well they decided to create a regulatory agency anc called it the Federal Drug Administration. But it was not only snake oil hucksters and home remedy purveyors that concerned them, it was the licensed docs and pharmacists as well.

To their horror, that also noticed that these folks were to be found in every state. How then to insure, insofar as possible, the benefits of the FDA to the entire nation? Why the Commerce Clause of course. Was it a fiction? You betcha. The snake oilers and home docs brewed up the stuff on their own property and purveyed is in the neighborhood. Interstate commerce? Don’t make me laugh! Did the benefit to millions of people that flowed from the FDA’s control and regulation justify the indulgence? Sure it did. And the Supremes went along.

Now, with a total blind eye to history, and a hole in your understanding of the legal and political systems in America large enough to sail the USS Ronald Reagan through, you’re willing to throw all that over, so people can smoke dope and call it medicine.

I would have thought that with all the billions at his (her?) disposal, a more qualified and capable advocate would be looking out for old Lucifer’s interests. 2L you say? Or was that someone else. Oh well. No matter.

I’ve never claimed to be a lawyer and don’t even pretend to play one on TV, let alone the internet. I didn’t notice the sign at the door requiring a law degree to participate; that may be part of the problem, those of us on the “outside” of the club have different ideas than those of you inside.

I consider it a feature because the law remains in place where it can be used to convict others whose cases are such that their juries don’t nullify. Probably lots of people are convicted of things that they shouldn’t be, either through trial or plea, and I don’t see that as a reason that some few shouldn’t be. If anything, it’s perhaps a reason that there should be more nullification, not less.

I was taught (7th grade civics, back in the 60s) that jurors were officers of the court; I thought that that was a strange thing for them to be and got in trouble because I doubted it. Googling //juror “officer of the court”// seems to find statements like
/
As a juror, you are an officer of the court who listens to all the evidence and arguments presented in a trial to reach a decision in the case.
/
By supporting employees who serve on juries, you have the privilege of assisting the administration of justice. In addition, you will probably find that your employee’s participation as an officer of the court is an interesting and educational experience.
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As a grand juror you will act as an officer of the Court, together with the lawyers and judges.
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As a Citizen, your duty to participate as a Juror in a court of law is a very important aspect of our democracy. While serving as juror, you become an officer of the court and your participation is vital to the fair administration of justice in our state’s judicial system.
/
How do I dress for jury duty?
A juror is an officer of the court. Please dress in appropriate court attire. You may not wear shorts, skorts, halter or tank tops, hats, or sunglasses in the courtroom. Any juror not appropriately dressed will be excused to return to court the next day in appropriate courtroom attire.

(all from the documents linked from the first page of those Google hits.)

Any explanation for why all of those folk — lawyers and judges — are also confused?

When an ‘initiative’ is passed by vote of the electorate, the legislature must “Chapter” it. That means to find a proper place to locate it in the code books and give it some numbers so it can be found and indentified by interested persons.

A “legislative enactment” is the process by which a bill makes its way through both house and gets signed by the governor.

Very different. Wouldn’t you agree? Sure you would.

Your mama warned you that if you kept skipping that civics class it would come back to bite you. Didn’t she? Now what you don’t know is out there for all to see.

Getting your legal education from Google? And your recollection of 7th grade civics taught to you in the ’60’s. Well! Be still my beating heart and please pardon me all to Hell! How can someone with only 4 years of undergrad, 3 years of law school and 30 or more years experience in the system dare bridle at being cast as stupid, uncaring or insensitive by someone with that kind of background? I’m sorry. It must be the heat. Hope for a weather change and a big dollup of forgiveness is all I can hold out for now.

“You don’t seem to understand the concept of juries being sovereign at the last word.”

I doubt that anyone fails to understand that jurors make ultimate findings of fact at trial: That’s why people are so upset by the thought of irresponsible jurors. A great burden to remain circumspect about oneself and the limits of one’s own knowledge accompanies this fact-finding function. People’s lives can be destroyed by cavalier disregard for principles developed over the course of centuries to protect both defendant and victim. Many of us find it deeply shocking to see anyone pretend (s)he knows better than the rest of society what laws govern us collectively, (and, thus, directly threaten the integrity of the trial process).

This is a matter of deepest concern to prosecutors, judges, and defenders alike. It should be a matter of deepest concern to everyone else as well since everyone may be wrongly accused of crime, and thus subjected to the pernicious and arrogant whim we have seen expressed in these discussion threads.

@ms. judged:
let’s make a deal. i’ll let you arrogate to yourself which parts of the constitution you’re willing to dispense with in the name of perceived social benefits if you let me acquit granny cancer patient of growing her four pot plants.
i should advise you that i’m holding the 19th amendment hostage, and if you don’t agree to this deal, i will shoot the 19th amendment. a number of people could be found hereabouts who would subscribe to the notion of great social benefit accruing from denying women the right to vote.
on the benefits you mentioned: most of those old medicines had ethanol as the major active ingredient, sometimes supplemented with coca extract. not much good in the long term, “croaking and maiming” may be an overstatement, but you can’t tell me that after plunking his dollar down at the tented wagon and knocking back two ounces of gin with maybe half a gram of blow dissolved in it, jethro hayseed wasn’t a happy camper for a little while at least.
not 2l, retired l, went inactive with bar years ago when i couldn’t stand doing it for another minute. don’t you worry about ole lucifer’s representation, don’t you know the dark one loves compliant, statist jurors ever so much?

“People’s lives can also be destroyed by slavish devotion to misapplication of those laws.”

No one is advocating slavish devotion to misapplication of law. If the jury charge is wrong, it can be remedied. Average jurors simply cannot identify such error due to lack of specific training and professional experience (NOT due to lack of intelligence). False personal beliefs about law never properly ground criminal convictions or acquittals. Too much depends on the integrity of the trial process.

“Whether the police and prosecutors are exercising their own pernicious and arrogant whims ….”

If you find, as a juror, that the witnesses are not credible in the accounts they relate, those are legitimate grounds on which to discount that evidence. That is not “jury nullification,” and it is not what people are reacting to in these threads.

@federal dog:
people’s lives can be destroyed by that slavish devotion in the time after they’re convicted, but before the appellate ruling comes down reversing the conviction.
“average jurors simply cannot identify…”
this is self-revelatory. where is mister or missus average juror? i think all prospective jurors and people in general are unique and extraordinary in some way, you apparently think of them as demographics, too much time on the job would be my guess.

“May I suggest another forum where lawyers, judges and elected officials are not at play. Your lack of bona fides will be less apparent there.”

Golleee! I guess I missed the sign that said “Private Club — Only Lawyers Allowed”. I suppose I should just slink away in the face of such exhalted company.* But I won’t..

Seems to me that if a wine-sipping libertarian finds himself on a jury panel for a drug case, somebody didn’t ask the right questions during jury selection. The one time I was called for jury duty on a drug case the initial questionaire asked if any of us were so opposed to the law that we couldn’t vote to convict, even if we were convinced of the defendant’s guilt. Thus, a wine-sipping libertarian would have had to lie on the questionaire to get on that jury.

“Your misunderstanding of the law and the system is almost total.”

Okay, sorry to pick on Ms. Judged [although I’d be surprised if I’ve misjudged her*]. But consider: What does it mean for the state of our democracy when the average citizen does not understand the legal system, doesn’t know what the laws are, and can not understand them? Should we then meekly submit to the rule of the elite that does understand the laws, having written them after all? Or should we start worrying that we’re headed for a wreck when the citizens of the country no longer understand the workings of a major institution of the country?

I certainly understand why lawyers and judges don’t like jury nullification and I sympathize. I too hope it remains a rare event. But understand where we mere citizens are coming from: When we get snarked at and condescended to by folks like Ms. Judged, who apparently feels that we unclean aren’t fit to even discuss such lofty matters, our natural reaction is to say “Thank God for juries and jury nullification!”

In my view, jury nullification isn’t just about judging the law, but about judging the entire proceeding. I sat on another jury where a young man was being tried for child molesting. Through the course of the trial it became apparent that the prosecutor did not have a single shred of evidence to support the charge — the accuser “suspected something was going on,” the child was 18 months old, the medical exam was negative, and there were no other witnesses nor any evidence of any kind. Fortunately, the court-appointed defense is a very sharp guy who helped us understand that we couldn’t convict someone because the prosecutor had a theory that something might have happened. It didn’t take us 5 minutes to vote “not guilty.” Then we spent an hour or so in the jury room discussing the prosecutor’s up-coming bid for a judgeship, speculating that he would rather take a chance on sending an innocent man to the pen than be accused of being soft on child molesters during his election campaign. True Story.

Bottom line: We’ve got a darn good legal system and most of the people in it are decent, well-intentioned, and highly trained and intelligent. But it’s not a perfect system and not everyone involved in it is a perfect little angel. That’s why we have juries. That’s why jury nullification is important.

“@federal dog:
people’s lives can be destroyed by that slavish devotion in the time after they’re convicted, but before the appellate ruling comes down reversing the conviction.”

At least there is the possibility of remedy. What does the victim or defendant do who is the victim of jury nullification, whether born of malice or ignorance? That damage may well have no remedy. Both defendant and victim deserve better than such destructive caprice.

“average jurors simply cannot identify…”
this is self-revelatory. where is mister or missus average juror?

That’s not the question. The question is how to reliably safeguard a trial record for appeal so that remedy for trial error can be secured. That is done by applying the law, as stated in the court’s charge. If that charge is wrong, the error can be remedied. If jurors run amok in ignorance and emotion, there may be nothing to do to help the victim of those jurors on appeal.

“i think all prospective jurors and people in general are unique and extraordinary in some way, you apparently think of them as demographics, too much time on the job would be my guess.”

Your assumption about me is wrong, and again, this is not a question of being extraordinary or ordinary. It’s about what is needed to make an argument on appeal and help someone who suffered unfair prejudice at trial, whether because of the judge, prosecution, defense counsel, or jury.

No one is fallible, including jurors. For that reason, jurors are every bit as obliged to follow the law as the rest of us fallible mortals.

BTW, thanks Ms. Judged for the history lesson on the Federal Drug Administration. Oddly, I couldn’t find a thing about them on the internet. I did find the web site for the US Food and Drug Administration though. Must have changed their name, huh?

I suppose I should point out that the verdict in my child molester example is not jury nullification, it’s merely an example of someone less than angelic in the legal system, which underscores the need for juries and, I think, jury nullification.

“I suppose I should point out that the verdict in my child molester example is not jury nullification, it’s merely an example of someone less than angelic in the legal system, which underscores the need for juries and, I think, jury nullification.”

You are correct that it is not an example of jury nullification. It is far, however, from underscoring any need for jury nullification. If the prosecutor had presented plenty of reliable evidence establishing beyond a reasonable doubt that he had committed sexual assault, and a juror who was also a child molester (or believed that sex with children is perfectly acceptable and wrongly criminalized) decided that no matter what the law says he will not convict, THAT would be jury nullification. And it would be wholly offensive and improper.

Juries are not freestanding Legislatures of 12, and to allow them to act as such is to undermine the Rule of Law.

No, but they are the check against unconstitutional laws. Example, the Second Amendment is a right that shall not be infringed. Forgetting all the political and judicial rhetoric, gun control is unconstitutional. Every person has the inalienable right to keep and bear a weapon. The ONLY way that this right can be infringed is via the 5th amendment…..DUE PROCESS. Any other method of denying the right to arms is unconstitutional and anyone charged with a gun crime that has not had that right denied through due process should have their case nullified by the jury.

I am against jury nullification. Some have advanced extreme examples that either would never occur in the real world, or where the moral choice is so clear that it would be obvious, except to those blinding themselves to their own humanity for the sake of consistency.

Okay, Patterico, what about less extreme examples from our own history? Anti-misgenation laws? Anti-Semitic property covenants? Would you have voted to nullify them?

Jury nullification is the reason for juries in the first place. Absent that power, there is no reason whatever to involve nonspecialists in evaluating evidence and applying the law. You (and society) would be much better off with a panel of trained people — not actual judges, perhaps, although I would think a judge should be the foreman of such a “jury”. It would at least eliminate the practice of “venue shopping” that gives us so many of the ridiculous awards in Civil law. You could probably get a majority vote for it — there are more people who care about their own convenience than there are who give a damn about the responsibilities of a citizen.

The reason juries exist, and are supposed to be made up of the “peers” — social equals — of the defendant, is that the jury has the power to say, “Yes, this was a violation of the law, but the law is an ass in this case. Turn ‘im loose!” It is the answer to such insanities as my friend, who recently got a $2,000 traffic ticket for driving too fast to the hospital where his wife was being admitted for a major heart attack. A ticket? Sure; he was fracturing the speed limit into pin-sized fragments. A ticket with a fine attached that bids fair to drive him into bankruptcy, for an offense committed on a country road with little traffic? Stupidity. Asslaw.

A jury that cannot nullify is not a jury. It is a panel of incompetent lawyers. Eliminate that power and you have eliminated the guarantee that the jury system offers the accused. And however much of a good guy Patterico may be, it’s telling that it’s a prosecutor proposing the elimination.

Starting and the bottom and working up. You got me Swen. FDA is in fact the acronym for the Food and Drug Administration. You da man. Oh, and that history lesson. What did you find out about that?

As for all the rest, and at the risk of stating the obvious, this site is hosted by a lawyer. It attracts more than its fair share of lawyers or those otherwise engaged in the legal profession. Now if you aren’t one of those, let me share a few things that may help. First. We make, refute, analyze, attack, weigh, consider and/discuss arguments for a living. Second. Words and their effective usage are our stock in trade. Third. As a result of our constant exposure to the rough and tumble of the law biz, we develop hides that would be the envy of a Rhinocerous. Fourth. We’re extremely hard to bully or intimidate. Fifth. If attacked we fight back. Very effectively for the most part. Sixth, we know more than a little about the American political system and the politics that drive it.

If you are not a lawyer or otherwise engaged in the legal biz, and you frequent these pages, you must understand that you are in deep water. Not just “deep end of the pool” water; deep, cold murky, salt water far from shore. What you also don’t find in the pool, but do in the cold and salty, is hungry, agressive predators swimming just beneath the surface. No pool water here.

For the same reasons one should not go to a website run by neuro-surgeon and leap into the middle of a debate, full or themselves, and full of opinions and insults, non-lawyers should excercise caution here. You are welcome. I don’t mean to imply that you’re not. But politics, the law, the courts and the day to day business of the legal profession are discussed on a different plane at these sites than some others.

Although your opinions are welcome, don’t expect everyone to hold them in the same regard as you. We are trained and know that opinions are only as good as the facts and circumstances upon which they are based. If you opine in areas or on topics with which your personal store of knowledge is limited, expect to get your head handed to you. In polite society the old rejoinder that “I have a right to my opinion” may get you somewhere but not here. Just as with this debate. Simply because you think that’s how things should work, or that jurry nullificaiton is a good idea or should become common practice, wont cut it. It is an emotional argument not a fact based one. It is illegal and a perversion of our legal system. Those who argue for it, and who have some legal background know that. They also feel, many times rightfully so, that many laws are not worthy of enforcement, you don’t hear them argue that jury nullification is legitimate, only that its possible and happens from time to time.

Those without legal training argue that the jury is “…soverign at the last word…” or some such nonsense. Not so. Judges in many cases have the authority to overturn a juries’ verdict or to grant a new trial regardless of it. Didn’t know that did you. Appellate courts reverse jury verdicts all the time. If juries were soverign, and they are not, the verdict would be akin to holy writ. Sorry, it just isn’t. Lawyers know that. Non-lawyers, with rare exception, don’t. Hence the kind of sentiment mentioned above.

What many also fail to get is that in the most direct and unkind argument may have underlying humor. Or at least an attempt at it. Hey, after getting really up in the face or our opponents in one minute, we may be having lunch the next or sharing a laugh over the confrontation. Nothing personal, just business. Was it Don Corleone said that? Or F.Lee Bailey? Can’t remember. Trial lawyers are a competitive bunch and love a good fight.

So for all that don’t like what I may have said, for all those that think by calling me names they may have gained some ground, or taught me a lesson, and for all those who may have missed the humor or failed to appreciate the truly grand level of snark employed in some of my posts, may I most respectfully suggest that you go back and read my submissions again. View with a new eye so to speak. You may learn something you didn’t know before or at least leave with a different impression. I hope so.

If an example is needed that may shed some light, take a look at Assistant Devil’s Advocate’s post #47, above. That’s how you do it. A little snark, a few good facts, a little humor and an expressed distaste for marijuana laws. Oh, and a preference for cancerous grannies. I’m not sure about that part. A pro. Too bad he quit. He was a good one I’ll wager.

I leave you with a quote from that eternal philosopher, cult figure and guru to the unwahsed masses, Yogi Berra who said: “When you come to a fork in the road, take it.”

. Simply because you think that’s how things should work, or that jurry nullificaiton is a good idea or should become common practice, wont cut it. It is an emotional argument not a fact based one. It is illegal and a perversion of our legal system.

Then why haven’t courts declared that in so many words, so even the non-lawyers who hear these cases can understand? Why the positve references to “exceptional” cases, and to the ability of juries to infer their power of nullification from the popular culture, even to the lack of instructions from a judge that they must convict, paralleling the instructions on acquittal?

Lawyers may like to debate arcana, but a legal system that open admits it relies on juries inferring the existence of a power they have, that speaks of “play in the joints,” based on unwritten traditions like the British Constitition, seems designed to leave the door open to nullification.

Language such as Dougherty’s: “Our jury system is a resultant of many vectors, some explicit, and some rooted in tradition, continuity and general understanding without express formulation” simply does not square with the belief that the rights and responsibilities of a jury are completely delineated in written law.

So if judges and lawyers don’t want the non-lawyers on the juries to be confused about nullification, they should lose the “general understanding without express formulation.” and other such nuances. Just write in your decisions that nullification is always wrong and always illegal — no exceptions.

Ms. Judged (#37): “… But you should at least have some working knowledge of the topic before you engage in it. May I suggest another forum where lawyers, judges and elected officials are not at play. Your lack of bona fides will be less apparent there.”

Ms. Judged (#61): Although your opinions are welcome, don’t expect everyone to hold them in the same regard as you.

My, Ms. Judged, you tap dance very well! As for calling people names, what can I say but “Hi Pot, I’m Kettle.”

A fascinating series of posts on nullification Patterico, very informative, Thank You. However, after reading all three and all the comments I’ve got to say that I’m more than a bit dismayed — but not terribly surprised — at the open contempt for the jury and the contempt for the intelligence of the rest of the world expressed by some of your colleagues commenting here. Let’s just say that this isn’t the best example of advocating for one’s profession that I’ve seen lately.

Several times it has been stressed that the man on the street doesn’t understand the law. I certainly grant you that. But I’ll argue that a jury which gets to the point of deliberation and still doesn’t understand the laws pertinent to the case has no business producing a verdict. Bottom line: When you’ve carefully culled everyone from the panel that had more than three functioning brain cells, don’t complain to me that juries are stupid, okay?

Sorry, but rather than bringing me around to the belief that nullification is a bad thing, this series of posts has convinced me that juries, and jury nullification as a rare last resort, are very good things indeed, if they can at all counter such cocksure arrogance.

In the end, this is much ado about nothing. Jurors regularly send word to the court if there is anyone on the panel disregarding facts and law to indulge personal prejudice. Jurors are every bit as offended by such mindless and predatory conduct as any of the legal commentators here. Leave it to honest jurors to weed out any dishonest ones. I have sufficient confidence that the majority of jurors will not tolerate anyone lying under oath and victimizing people to indulge personal conceits of omniscience.

YES!! You have hit the nail on the head. Why bother with a jury if they MUST obey an employee of the State? Too bad the lawyers here don’t understand the basics of why juries exits, despite being afflicted by “legal” training.

A jury that cannot nullify is not a jury. It is a panel of incompetent lawyers. Eliminate that power and you have eliminated the guarantee that the jury system offers the accused. And however much of a good guy Patterico may be, it’s telling that it’s a prosecutor proposing the elimination.

Ric,

The way the system is set up currently, juries have the *power* to nullify. I am not proposing to change the system.

What I am saying is that they don’t have the *authority* to nullify.

Sometimes as a human you must do things you don’t have the authority to do, but in an orderly society such situations should be extremely, extremely rare.

I believe I understand why juries exist: to stand as a bulwark between the state and the laws, to make sure that people are not prosecuted when the evidence is not there. We consider that important enough that we get all sort of irrational verdicts, and plenty of truly guilty people do go free. But that’s the balance we’ve struck, and I think it’s a good one.

Make sure to read all my posts on the issue before you judge my views on this.

… I believe I understand why juries exist: to stand as a bulwark between the state and the laws, to make sure that people are not prosecuted when the evidence is not there. …

I would put it that the jury is the bulwark between the power of the state and the individual’s “right to be wrong”, even when there is sufficient evidence and law to convict. It should be the prosecutor’s job not to prosecute when the evidence isn’t there, not the jury’s job to rescue a prosecutor from a prosecution that shouldn’t have brought at all. It’s the defendant in those cases that needs rescuing, having great expense for the actions of the state.

Reading Shakeshpere. Good. The occassional jury nullification makes no such community statement. Another group drawn from that same pool, would convict on those same facts and law in 99% of the cases. Probably more. The message from the nullifying jury is not so profound. It says that we 12, in our infinite winsdom, and with a deep understanding of law that transcends that of just about everyone else in the state, and with an eye towards giving you ignoramuses a glimpse of true brilliance, will acquit this defendant. The law, you see, does not apply to us. Nice. And oh so useful.

Swen:

If you insist. Helllooo kettle. Tap dancing is it? I admitted my error. Didn’t even try to make an excuse. But is so doing, I challenged you to take a look at the substance of that “history lesson”, as you called it. Overlooked that part did we? Unsurprising. At least tap dancers take to the floor. Wallflowers on the other hand, sit with backs firmly pressed against the wall, mumbling about how badly everyone else dances. Understandable. If you don’t dance, no one can accuse you of having two left feet. Its safe, but adds little, save audience, to the festivities. Thanks for watching. Oh, and mumbling.

Please don’t go away. Whatever gave you the idea that I wanted that?. I merely tried to explain with great patience and no small detail why unsupported opinions will get the bum’s rush in a forum dominated by attorneys. Express them if you will, but be prepared to be drawn and quartered if you are unable to support them with anything other that a plea for compassion or understanding.

Another Yogism. Paraphrased. Sorry Yogi. “If people don’t want to *dance*, there is nothing you can do to stop them.”

@ms. judged:
why thank you, very nice of you to say that.
too bad i quit? oh no, one of the most liberating, empowering, very best decisions of my life. i danced a jig as my stationery burned in the garbage can.
i love the yogi berra canon too. did you know, when his wife asked him where he wanted to be buried if he were first to die, he said…….
“surprise me!”

Sorry, but rather than bringing me around to the belief that nullification is a bad thing, this series of posts has convinced me that juries, and jury nullification as a rare last resort, are very good things indeed, if they can at all counter such cocksure arrogance.

I’m happy you’re happy. There has been many a time that I seriously considered bailing. I kept putting it off and the next thing I knew, 30 years slipped away and its too late to do anything else.

You know I think it was the practice of law rather than the law itself that put me off. We deal is bad news and disasters don’t we? Everytime a new client left my office and left his/her big pile of problems and misery on my desk, I asked myself what I was doing and how long I could keep doing it?

But I must confess that I love the law, lawyers and the judicial branch. Getting out of practice while continuing to work in the legal system saved me I think. Practice would have enventually eaten me up.

This debate of Pat’s is worth having. As are many of the topics he raises for discussion. Lawyers and other legal professionals get to exchange ideas. Others get in on the debates as well. It is bracing to hear from them. But it is disturbing to see and hear the mistrust and deep lack of understanding of the very laws and legal system that affect almost every aspect of their lives.

I truly believe these exchanges provide both teaching and learning moments for all those who read and/or participate. Pat and his forum provide a valuable service. Other than his attempt to clean up that mess over at the People’s Daily AKA, the L.A. Times. Ha! Thanks Pat.

I’m glad to hear someone appreciates Yogi. It does “get late early out here” and his observations help keep the light around awhile longer.

The message from the nullifying jury is not so profound. It says that we 12, in our infinite winsdom, and with a deep understanding of law that transcends that of just about everyone else in the state, and with an eye towards giving you ignoramuses a glimpse of true brilliance, will acquit this defendant. The law, you see, does not apply to us. Nice. And oh so useful.

Yes, it does, and that is exactly the role of the jury in a republic. Wake up and smell the reality and purpose, Ms. Judged

[…] I have said I would support jury nullification in extremely rare and desperate situations, where the fabric of our society was falling apart and our laws were inconsistent with basic humanity. For example, I would not convict someone of helping a slave escape his master. If we somehow passed a law making it illegal to be Arab, or Jewish, or black, or Mexican, I would not convict someone for that “crime.” […]

You are correct of course about N.G. verdicts. My point was that if jury verdicts were as sacrosanct as some seem to think (“..soverign at the last word..” Remember?), it would work both ways. The guiltys would carry the same weight as the not guiltys. See? With just a little thought, even you could have figured that out. How clever you are. Not. But all is not lost. We now know that you’re not just slow; you’re a slow mysoginist. Eeek! Thanks for the insight.

Lysander Spooner eh? I was kind of guessing on the square when I accused you of being a know nothing anarcist. Pretty good guess as it turns out. It makes you and your posts more understandable. Fight the power! Raise that Black Flag! Who or what else do you hate?

Lysander Spooner eh? I was kind of guessing on the square when I accused you of being a know nothing anarcist. Pretty good guess as it turns out. It makes you and your posts more understandable. Fight the power! Raise that Black Flag! Who or what else do you hate?

Boy – or should I say “Girl” – are you so wrong. I am philosophically libertarian, and voted for GWB in ’04. What I “hate” (a very strong word, btw) are people such as yourself who claim wisdom because you have an advanced degree. Or, people who divorce morality from legality.

For further reading check out Bastiat, Hayek, Mises, Rand and Rothbard. Your “liberty” education appears to be lacking, and your legal education gets in the way of right and wrong.

My morality states that if one doesn’t use force or fraud to achieve one’s goal, then one’s actions are permissible even if legall wrongy, or even morally wrong by Judeo-Christian standards. Having said that, even assuming some prosecutor would permit me to get on the jury – a doubtful probablity given I “think” – something prosecutors and defense attorneys in some case don’t want, I wouldn’t lie to do so.

@ms. judged:
“30 years slipped away and it’s too late to do anything else.”
oh no. your conclusion does not follow from your premise. 30 years has given you all kinds of experience, sharpened your wits, primed you for new challenges outside the rules and constraints of lawyering. there’s all kinds of business you can get involved in where your skills will still be relevant and remunerative, you can make your own hours and your own rules, dress to your own code, where you won’t have to be nice to people you can’t stand, take mcle courses or even answer your phone!
time for ms. judged to get wild, jump off the tracks and bushwhack overland to a greener, freer, mellower reality. carpe diem!

This post is fundamentally wrong. First off, what you have described is not jury nullification, rather you have described a hung jury. In your situation, the state can just go ahead and prosecute the drug dealer again with a different jury. Jury nullification is when a defense attorney can argue to the entire jury the notion (or the jury decides itself) that they, as a group, can invalidate a prosecution by voting not guilty thus preventing further prosecution.